Efforts to track the progress of the Performers’ Protection Amendment Bill and the Copyright Amendment Bill through stages of assessment and approval in provincial legislatures reveal a widespread failure of engagement with the issues at hand, a paucity of public information, and lack of interest on the part of many of our public representatives in their obligation to serve the interests of their constituencies.
I’ve just spent the worst part of seven months monitoring the above two national bills in the provincial legislatures. At the time of writing, their latest versions were almost ready to leave Parliament. When you read this, they may already be with the President, waiting to be signed into law.
Whatever the case – and regardless of whether the bills themselves augur well or badly for the future of our creatives and their industries – my own interest has always been in the parliamentary process. And from where I sat as a member of the general public, from the time the revised remitted bills arrived in the provincial legislatures, the process was an unmitigated mess.
This may have been because there are no uniform standards or procedures to guide the provinces in processing national bills.
The Mandating Procedures of Provinces Act simply prescribes the steps to be taken when adopting a provincial legislature’s negotiating and final mandates on a national bill.
The only other mandatory requirements are spelt out in section 118 of the Constitution. These are that each provincial process should include sufficient opportunities for public participation, and that committee meetings should be accessible to members of the public, including the media.
Everything else is left open to interpretation, allowing each province to do its own thing – including deciding whether to share documents tabled and discussed at public meetings. In national Parliament, they’re readily available. Not so in most provincial committees dealing with the Performers’ Protection and Copyright Amendment bills.
According to the legal adviser of one provincial legislature, only a committee chair has the authority to approve access to the report on a final mandate that is read and considered during a public committee meeting. This, apparently despite the virtual presence of the person requesting it. Whatever the case, that request should be made in writing on an official letterhead and should explain why the report is required.
At the time of writing, only two committee coordinators were willing to share copies of final mandate reports on each bill considered and read out either in-committee or in the legislature itself.
I have it on record that in one provincial legislature, no final mandate report was either prepared or considered by the committee concerned.
One coordinator provided documents circulated in May on an earlier version of each bill, possibly hoping nobody would notice.
When the time arrived for final mandates to be tabled at a meeting of the NCOP committee for a final vote on the bills, provincial committee reports were attached to the final mandates of only one provincial legislature.
The chair of the committee tasked with processing the bills in one other legislature read out a report on each final mandate – but those documents were not made available on request.
There was no response whatsoever to my request for final mandate reports from the committee coordinators or parliamentary liaison officers in this and three other provincial legislatures.
Apparently, each legislature has the latitude to decide whether or not to compile such a report; whether or not it should be submitted to a sitting of the House and, thereafter, to the NCOP committee concerned – and whether it should be made available to members of the public.
Section 116 of the Constitution provides that a provincial legislature “may determine and control its internal arrangements, proceedings and procedures” as well as “make rules and orders concerning its business”.
This is nevertheless “with due regard to representative and participatory democracy, accountability, transparency and public involvement”.
I’m not convinced that this important caveat was considered in any of the four provincial legislatures whose committee coordinators ignored my request.
At the beginning of this arduous assignment, I discovered quite by chance that the first port of call for anyone monitoring a national bill’s passage through a provincial legislature is its parliamentary liaison officer.
Supposedly, this is the person most likely to be able to identify the committee responsible for processing a national bill and its coordinator.
Unfortunately, the list I received was out of date – and only a few parliamentary liaison officers in the updated list answered emails or their phones. Among those who did, even fewer knew which committee coordinator was dealing with the Performers’ Protection and Copyright Amendment bills.
When someone tasked with driving the process was eventually identified in each provincial legislature, only those in the Mpumalanga, Northern Cape and Western Cape legislatures could be relied upon to facilitate my access to any public hearings or committee meetings held virtually and open to observers. That’s three out of nine.
The rest were either doggedly uncommunicative or provided information only when politely reminded of their obligations under section 118 of the Constitution.
Although there seems to be an unwritten rule allowing the provincial legislatures six weeks to process a national bill, this is generally ignored.
The Performers’ Protection and Copyright Amendment bills were given slightly more than four months, two of which coincided with the long winter recess. One would have thought this presented an ideal opportunity for the committee in each legislature to arrange a special meeting so that members could participate actively in preparing a final mandate on each bill. However, if any special meetings were held at all, they took place behind the scenes.
The rule of thumb seemed to be that only one meeting was necessary to consider and adopt a negotiating mandate – and one meeting to consider and adopt a committee’s final mandate. Apparently, this unwritten rule is also understood to free provincial committee members from any obligation to attend meetings on such important matters.
On two occasions of which I’m aware, the committee concerned struggled to quorate. As for discussion and debate, across all nine provinces most committee members rarely if ever participated actively other than to vote.
Generally, the only time anyone other than a committee chair or support staff member spoke at these meetings was to propose or second a motion of support or opposition to a negotiating or final mandate on the bill in question.
During each accessible, virtually held or livestreamed meeting at which I was an observer, most committee members were present in body but noticeably absent in mind and spirit.
The Western Cape Legislature’s committee conducted two official meetings on the bills before members met to consider and adopt negotiating mandates. On both occasions, only the chair and two other members expressed their views in more than a single sentence.
The same happened when the committee met to adopt its final mandates, with the same people sharing their thoughts. In KwaZulu-Natal, the legislature’s committee held two meetings on its final mandates – only one of which involved any input from members.
This means that the position of a provincial legislature with diligent, critically thinking committee members carries the same weight as that of a provincial legislature with a committee whose members have done as little work as possible.
The number of hearings held in outlying districts doesn’t seem to count.
It doesn’t seem to matter how thoroughly the input received from stakeholders is analysed. And nobody seems to care if the members of a provincial committee do any homework. If the level of participation at the meetings I observed is any indication, most don’t.
In anticipation of public hearings, one would expect a provincial committee member’s homework to include reading the bill itself, as well as a report on the NCOP committee process before that bill was sent to the provinces.
Before considering and adopting a negotiating mandate, one would expect provincial committee members to read stakeholder submissions on the bill’s contents and the summary of input received during public hearings.
And in preparing to adopt a final mandate on that bill, one would expect provincial committee members to interrogate the NCOP committee report outlining why recommendations in their negotiating mandate were rejected, if that was the case.
There was no evidence of any homework whatsoever having been done by the members of most provincial committees when they met to consider a mandate.
On not a single occasion did I witness anything remotely resembling a lively discussion.
To be fair, however, the possibility of meaningful engagements during unrecorded committee meetings in the other legislatures can’t be ruled out entirely.
The whole point of a provincial legislature’s negotiating mandate is to propose ways of improving the bill – informed by stakeholder submissions and the views expressed during public hearings.
In extreme cases, a provincial legislature may even recommend that the bill be scrapped entirely for reasons that may even include stakeholder concerns about its workability or other unforeseen consequences.
With all that in mind, it’s only reasonable to expect meaningful input from provincial committee members when a negotiating mandate on a national bill is prepared, considered and adopted.
Alas. To all intents and purposes, in most provinces, the real work and all the thinking entailed in developing negotiating mandates on the Performers’ Protection and Copyright Amendment bills was left entirely to committee support staff.
Occasionally, they included the legislature’s legal adviser. Whether a committee chair or any other member was involved behind the scenes is now a moot point.
It is the task of the NCOP committee concerned to consider all nine provincial negotiating mandates on a national bill, along with any proposals for improving it.
A revised version is then drafted, incorporating any changes recommended by the provinces and deemed appropriate.
This process is outlined in an NCOP committee report explaining why some provincial recommendations were taken seriously and others not – and that report is sent to the provinces with the revised bill. The intention is that this should enable each legislature to arrive at an informed final mandate.
Shortly before the beginning of this year’s long winter recess, the NCOP committee sent revised versions of the Performers’ Protection and Copyright Amendment bills to each provincial legislature – with a report on the process followed and the minutes of every meeting focusing on provincial negotiating mandates.
Provincial committee members resumed their legislative work two months later when they met to consider final mandates. So, they had plenty of time to read all the documents.
It’s not clear if they ever did.
Neither is it clear how many provincial committees received a report from their support staff explaining how the NCOP committee had responded to recommendations in their committee’s negotiating mandates.
I know the Northern Cape Legislature’s committee did because I was present when it was read out and flighted. However, during other final mandate adoption meetings to which I had virtual access, if a report was read out at all, it tended to focus on the process followed in arriving at the mandate.
Only in KwaZulu-Natal was that report and the proposed final mandate on each bill questioned.
Across all nine provincial legislatures, on average the committees concerned spent approximately 30 minutes adopting their recommended final mandates on both bills for tabling, consideration, a vote and the Speaker’s signature.
Turning to provincial committee planning and organisation, tracking the process followed in six of our nine legislatures was nothing short of a nightmare.
In national Parliament, a schedule of upcoming committee meetings (including times and venues) is posted daily on that institution’s website. Even better, most proceedings are livestreamed on Parliament’s YouTube channel – including hearings in outlying districts organised by National Assembly committees. Not so in the provincial legislatures.
Except in the Free State, each legislature has a website but there’s no guarantee it will be regularly updated. And rarely, if ever, does it feature information on committee meetings.
Facebook seems to be the preferred mode of communication with ordinary South Africans – mostly to post general news on activities of interest to grassroots communities, occasionally including public hearings on national bills. Some are livestreamed. Only the Gauteng Legislature used its YouTube channel for public hearings on the Performers’ Protection and Copyright Amendment bills.
Generally speaking, not even Facebook is always used effectively – and only the Eastern Cape, Gauteng and KwaZulu-Natal legislatures are consistently active on Twitter.
When an event is earmarked for livestreaming on either platform, a notice is rarely posted there more than a few hours beforehand. Most of the time, members of the public are left to stumble across events on these platforms by chance and often retrospectively.
For anyone monitoring the Performers’ Protection and Copyright Amendment bills’ provincial process, this made forward planning difficult.
A timetable was eventually compiled for every hearing across all provinces and posted on the Parliamentary Monitoring Group website. Unfortunately, however, updates were sporadic and not always accurate – possibly because of communication difficulties with the legislatures similar to those I experienced.
Ideally, monitors and stakeholders should have been given sufficient information well in advance to make the necessary arrangements to observe a virtual or livestreamed event, travel to the venue themselves, or identify someone living nearby to attend as an observer.
However, this would have required each committee coordinator managing the process to be an efficient and effective communicator. In the case of these two bills, my own experience was that only a handful communicated at all with members of the general public – and only three reliably.
Trying to find information on plans for processing the Performers’ Protection and Copyright Amendment bills in the Eastern Cape, Limpopo and North West legislatures was like pulling teeth.
Much the same applied to the Free State Legislature, where the only official willing to communicate at all insisted that nobody but members of the legislature itself and support staff is ever allowed access to meetings on national bills.
This was eventually questioned by the legislature’s parliamentary liaison officer – which didn’t make things any easier for me. My attempts at communicating with the committee coordinator continued to be ignored.
However, towards the end of the process, communication with officials from the other three unhelpful legislatures did improve slightly.
When reminded of provincial committee obligations under Constitution subsection 118(2), parliamentary liaison officers sprang into action – persuading some committee coordinators to follow suit.
This may have been because that particular provision in the Constitution clearly states that a provincial legislature “may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society”.
As a result, links were provided at the eleventh hour to the virtually held meetings of committees dealing with these bills in the Eastern Cape and Limpopo legislatures.
Well after each event, I stumbled across a video on Facebook of sittings in the Free State and Gauteng legislatures at which final mandates on the bills were introduced, voted on and adopted.
And at exceptionally short notice, I was alerted to a sitting of the North West Legislature when the same steps were taken.
Across all nine provincial legislatures, the number of official committee meetings held to consider and adopt a negotiating or final mandate on the Performers’ Protection and Copyright Amendment bills was 19.
Nine focused on negotiating mandates and 10 on final mandates (two of which took place in KwaZulu-Natal).
I was allowed access to 11 in total – four on negotiating mandates and seven on final mandates (two having been held by KwaZulu-Natal’s provincial committee). Presumably, all other official committee meetings on mandates took place physically. I was never informed.
Perhaps communicating with provincial coordinators was difficult because the bills were processed by committees with several portfolios. Perhaps support staff were overwhelmed and under-resourced.
The portfolios of most provincial committees dealing with the bills include economic development – competing for attention with a combination of almost anything from environmental affairs and finance to agriculture and tourism.
In the North West Legislature, both bills were processed by the committee responsible for education, arts, culture, sport and recreation.
That said, if three provincial committee coordinators could manage to answer emails and run things efficiently despite all the different demands on their time and attention, why couldn’t the others?
As for the provincial committee members themselves, one can’t help but wonder how many are even vaguely familiar with the nuts and bolts of legislation falling under any of these portfolios, let alone how many are experts on any relevant subject matter.
And the chances are probably less than slim of any provincial politician in any legislature being equipped with a sound understanding of copyright issues.
After all, how many members of the National Assembly and NCOP committees responsible for processing the Performers’ Protection and Copyright Amendment bills understood their complexities? So, why should things have been any different in the provinces?
What appears to be the norm is worrying.
Surely well-informed, hardworking public representatives should be processing and finalising our laws?
The media already plays a valuable role in holding Parliament to account. But what about the provincial legislatures?
Hopefully, a suitably intrepid journalist will accept and rise to the challenge. DM